STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS
GENERAL TEAMSTERS UNION, LOCAL NO. 662,
CLARK COUNTY, Respondent.
Decision No. 29091-B
FINDINGS OF FACT, CONCLUSION OF LAW
General Teamsters Union, Local No. 662 filed a complaint with the Wisconsin
Relations Commission on January 7, 1997, alleging that Clark County had committed
practices in violation of Secs. 111.70(3)(a)1, 3, 4 and 5, Stats. On May 6, 1997, the
appointed Lionel L. Crowley, a member of its staff, to act as Examiner and to make and
Findings of Fact, Conclusions of Law and Order as provided in Sec. 111.07(5), Stats.
the complaint was held on February 24, 1998, in Neillsville, Wisconsin. The parties filed
reply briefs, the last of which were exchanged on July 13, 1998. The Examiner, having
the evidence and arguments of counsel, makes and issues the following Findings of Fact,
of Law and Order.
FINDINGS OF FACT
1. General Teamsters Union, Local No. 662, hereinafter referred to as the Union, is
organization within the meaning of Sec. 111.70(l)(h), Stats., and at all times material herein
exclusive bargaining representative of all regular full-time employes with the power of arrest
Clark County Sheriff's Department. The Union maintains its principal offices at 119 West
Street, Eau Claire, Wisconsin 54702-0086.
2. Clark County, hereinafter referred to as the County, is a municipal employer
meaning of Sec. 111.70(l)(j), Stats., and maintains its principal offices at 517 Court Street,
Wisconsin 54456-0111. At all times material herein, Dale Olson was the Clark County
acted on behalf of the County.
3. At all times material herein, the Union and the County have been parties to
bargaining agreements covering the bargaining unit represented by the Union. The first such
agreement (hereinafter "1994-1995 Agreement") was in effect from January 1, 1994 through
December 31, 1995. The "1994-1995 Agreement" contained, in pertinent part, the following
ARTICLE 5 GRIEVANCE PROCEDURE
Section 1. Grievance. A grievance is defined to be
a controversy between the Union and the
Employer, or between any employee or employees and the Employer as to:
A. A matter involving the interpretation of
B. Any matter involving alleged violation
of this Agreement in which an employee, or group of
employees, or the Employer maintains that any of their rights or privileges have been
violation of this Agreement; and
C. Any matter involving working
. . .
Section 4. Arbitration
. . .
C. The written decision of the arbitrator shall be final and
binding upon both parties.
. . . Page 3
ARTICLE 6 DISCIPLINE
Section 1. The parties recognize the principle of
progressive discipline. No disciplinary action
shall be taken against employees except for just cause.
4. The Union and the County entered into a successor agreement to the 1994-1995
Agreement, from January 1, 1996, through December 31, 1997 (hereinafter "1996-1997
5. During negotiations for the 1996-1997 Agreement, the County proposed the
addition to Article 5 Grievance Procedure:
Section 8: Add A New Section read as
For grievances involving the review of a
suspension, a demotion or a dismissal, the employee
shall have the option of having the disciplinary action reviewed under the procedures set
forth in Sec.
59.21., Wis. Stats., but such actions shall not be subject to review under the grievance
set forth in this Article.
The proposal was dropped during negotiations and the
language under Article 5
6. On November 30, 1994, Clark County charged Arthur Edwards (hereinafter
a Deputy Sheriff employed by Clark County under the 1994-1995 Agreement, with the
offense of resisting or obstructing an officer.
7. On December 12, 1994, Sheriff Dale Olson filed a complaint against Clark
Sheriff Edwards, pursuant to Sec. 59.21(8)(b), Wis. Stats. The Sheriff suspended Edwards
a hearing before the Clark County Grievance Committee, in which the Sheriff planned to
that Edwards' employment be terminated.
8. On December 20, 1994, the Union wrote a letter in which it put the County "(o)n
that any grievance committee hearings and/or actions taken by the County . . . do not
rights held by Mr. Edwards under the collective bargaining agreement. Deputy Edwards will
full recourse to pursue any action taken against him pursuant to the contract."
9. On or about January 27, 1995, the Clark County Grievance Committee denied the
complaint. Consequently, Edwards was reinstated to employment.
10. On May 1, 1996, a judgment of conviction was filed against Edwards for the
misdemeanor offense of resisting or obstructing an officer in Clark County Circuit Court.
appealed this decision to the Wisconsin Court of Appeals.
11. On May 8, 1996, Sheriff Olson filed a complaint against Clark County Deputy
Edwards with the Clark County Grievance Committee pursuant to Sec. 59.21(8)(b), Stats.,
recommending that Edwards be terminated for violating the law as evidenced by his
Sheriff suspended Edwards with pay pending hearing before the Committee.
12. On May 14, 1996, the Union advised the Sheriff that Edwards and the Union
any and all rights under the collective bargaining agreement between the County and the
challenge any adverse actions which may be taken against him as a result of the statutory
13. On or about May 29, 1996, the Clark County Grievance Committee sustained
Sheriff's complaint, thereby discharging Edwards.
14. On May 30, 1996, pursuant to the 1996-1997 Agreement, Edwards filed a
against Clark County for his "termination of employment without just cause."
15. In a June 7, 1996 letter, Edwards informed the County that, pursuant to Sec.
59.21(8)(b)6, Wis. Stats., he was appealing the Clark County Grievance Committee's
conclusions to the Circuit Court for Clark County.
16. The County's Personnel Coordinator sent the Union a letter dated June 19, 1996,
stated as follows:
This is to inform you that the Personnel Committee has agreed to
Arthur Edwards' request that
the grievance hearing before that Committee be waived and that, at his discretion, the issue
termination be referred directly to the arbitration process.
17. On July 12, 1996, the County's attorney sent a letter to
Union which stated, in part,
Regarding Mr. Edwards' discharge, the County would note that
Mr. Edwards has appealed his
discharge to the Circuit Court pursuant to Sec. 59.21(8)6, Wis. Stats., which provides that
Court's decision shall be final and conclusive. The County does not believe, therefore, that
arbitration is available to Mr. Edwards in this matter.
Thereafter, Clark County has continued to refuse the Union's
request to arbitrate the May 30,
1996 grievance protesting Edwards' discharge.
18. On or about January 24, 1997, the Circuit Court for Clark County denied
appeal and sustained the findings and decision entered by Clark County's Grievance
or about May 30, 1996.
19. On or about April 10, 1997, the State of Wisconsin Court of Appeals District IV
Edwards' conviction for misdemeanor obstruction of justice and remanded for a new trial.
Subsequent to the Court of Appeals decision reversing Edwards' conviction, a motion for
timely filed with Judge Curtin requesting reversal of the Order, which was denied.
20. After the receipt of the Court of Appeals decision reversing Edwards'
Union again protested Edwards' termination. Arthur Edwards remains terminated. He has
reinstated to employment.
21. Edwards was not retried; rather he entered into a deferred prosecution
successfully complied with the terms of said agreement and the case was dismissed with
January 28, 1998.
22. On November 5, 1991, the Clark County Law Enforcement Committee issued
Toni Karl, a dispatcher, a ten-day suspension without pay. The suspension was appealed to
arbitration. A hearing was held before Arbitrator Mueller on April 8, 1992, at the Clark
Courthouse. During the course of the hearing, the parties reached a voluntary settlement of
Upon the basis of the above and foregoing Findings of Fact, the Examiner makes and
CONCLUSION OF LAW
The County was not required to arbitrate the County's Grievance Committee's
the grievant under the parties' collective bargaining agreement's grievance procedure or any
agreement to arbitrate said discharge because the grievant chose to appeal his discharge by
Grievance Committee to the Circuit Court pursuant to Sec. 59.26(8)(b)6 (formerly Sec.
59.21(8)(b)6.), Stats., and therefore the County did not commit any prohibited practice in
of Secs. 111.70(3)(a)1, 3, 4 or 5, Stats.
Upon the basis of the above and foregoing Findings of Fact and Conclusion of Law,
Examiner makes and issues the following
IT IS ORDERED that the complaint be, and the same hereby is, dismissed.
Dated at Madison, Wisconsin, this 31st day of August, 1998.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Lionel L. Crowley, Examiner
FINDINGS OF FACT, CONCLUSION OF LAW
In its complaint, the Union alleged that the County violated Secs. 111.70(3)(a)1, 3, 4
Stats., by refusing to arbitrate the grievance over Edwards' discharge. The District answered
complaint denying that it violated Sec. 111.70(3)(a), Stats., by refusing to proceed to
The Union contends that the clear and unambiguous language of the parties'
provides that a discharge grievance is arbitrable. It refers to the 1994-95 and 1996-97
which contain no language excluding discharge or suspension grievances from arbitration. Is
that the 1994-95 agreement defines a grievance which encompasses discharge grievances. It
that the County attempted but failed to exclude disciplinary grievances in negotiations for the
agreement. It insists that the unambiguous contract language must be enforced and the
grievance is arbitrable.
The Union alleges that past practice supports its interpretation. It refers to the 1991
suspension of Deputy Toni Karl whose grievance proceeded to arbitration and was settled
hearing before the arbitrator. It also claims that the suspension of Deputy Dennis Soik was
through the grievance procedure and the County has never before refused to arbitrate a
grievance. It further contends that bargaining history supports it in that the County
proposed a change to the grievance procedure which would have taken away employes' rights
disciplinary action subject to review under the grievance procedure. It insists that the
proposal was not merely a clarification of existing contract language but was a new change
County is seeking to impose on Edwards the very restrictions it could not obtain in
The Union asserts that the County agreed to arbitrate the Edwards grievance. It
in the County's June 19, 1996 letter to the Union, the County agreed to waive the initial
steps of the
grievance procedure and stated that Edwards could proceed directly to arbitration. It argues
County reneged on its agreement in a July 12, 1996 letter to the Union stating that Edwards'
grievance was not arbitrable because he appealed the Grievance Committee's decision to
Court as provided in Sec. 59.21(8)(b)6, Stats. It notes that the County was aware that
appealed to Circuit Court before the County agreed to arbitrate and such warrants an order
the County to satisfy its agreement to arbitrate.
The Union takes the position that the agreement does not conflict with the statute. It
that the Wisconsin Supreme Court has determined that Sec. 59.21(8)(b) neither conflicts with
prohibits arbitration agreements covering discipline of deputy sheriffs and the parties may
contract terms that permit the option of appealing disciplinary action to neutral arbitration.
It contends that the collective bargaining agreement contains an arbitration provision
permits Edwards to appeal his discipline to an impartial arbitrator. It insists that the
of appeal to circuit court does not disrupt the harmony of Sec. 59.21(8)(b) with a collectively
bargained arbitration procedure. The Union maintains that the law of Wisconsin favors
of labor disputes through grievance and arbitration procedures. It recognizes that the WERC
strive to reconcile the provisions of MERA with any seemingly conflicting provisions of
statutes. It observes that the statutory establishment of committee review does not negate or
with the parties' obligations under the arbitration provision.
The Union claims it is entitled to reasonable attorney fees incurred in bringing this
the grounds that the County has acted in bad faith in refusing to arbitrate Edwards'
The Union concludes that the statutory procedure set forth in Sec. 59.21(8)(b) is in
with the Agreement's grievance procedure and the County's position that the statute
of the Grievance Committee's decision to a neutral arbitrator conflicts with the clear
language of the
agreement, bargaining history and past practice. It argues that the County should be ordered
arbitrate Edwards' termination and make the Union whole.
The County contends that there was no agreement to submit Edwards' termination to
arbitration, and even if there was, it would be void as a matter of law. The County argues
Union's assertion that the letter of June 19, 1996, was an agreement to arbitrate is erroneous.
states that the record establishes the County was not by the letter expressing an intent to
it simply agreed to waive the grievance steps and Edwards, at his discretion, could refer the
directly to the arbitration process but the County was not agreeing to arbitrate the dispute nor
waiving any challenges should Edwards decide to pursue arbitration. It claims that the Union
to ignore the history behind and the rationale for the County's proposal in the 1996-97
The County asserts that the County understood that a discharged officer had to choose
appealing to arbitration or to court, but could not do both. It asserts the County recently has
the position that the officer's only appeal is to court and the proposal was intended to clarify
statute versus the grievance procedure. It submits the County's July 12, 1996 letter is
its understanding that because Edwards appealed his discharge to circuit court, he could not
to arbitration. It contends that this is consistent with past practice in that Deputy Toni Karl
appeal to circuit court so her discipline was properly appealed to arbitration. The County
that there was no unconditional agreement by it to arbitrate Edwards' discharge and assuming
agreed under the "one or the other but not both" theory, Edwards' appeal to circuit court, as
in the County's July 12, 1996 letter, meant that grievance arbitration was no longer
The County alleges that the Commission lacks authority to order the County to
arbitration over the decision to discharge Edwards. It notes that the discharge of a deputy
sheriff is regulated by Sec. 59.26, Stats., formerly Sec. 59.21, Stats. The County
observes that the
Grievance Committee's decision is subject to review by the circuit court and Sec.
Stats., provides that if the order of the committee is sustained, it shall be final and
notes that this parallels Sec. 62.13, Stats., for city police and fire departments and it points
the relevant language related to circuit court review between the statutes is identical. The
claims that the two statutory provision create an irreconcilable conflict with the grievance
It observes that this conflict was recognized and addressed by the Commission nearly fifteen
ago in City of DePere, Dec. No. 19703-B (WERC, 12/83). It asserts that early Commission
law allowed the "one or the other" approach and here Edwards' having appealed to circuit
order to proceed to arbitration would impermissibly contradict the provision of Sec. 59.26
decision of the circuit court shall be final and conclusive.
The County argues that the Court of Appeals in City of Janesville, 193 Wis.2d 492
(Ct.App., 1995) determined that a contract provision which would allow an officer to appeal
disciplinary action to arbitration rather than to circuit court was prohibited because it ran
an express statutory command and was an unlawful transfer of authority. The County asserts
the City of Janesville, supra, provides strong precedent for the position that the Commission
authority to order the County to proceed to arbitration because to do so would create an
irreconcilable conflict with the express provisions of Sec. 59.26(8)(b)6, Stats. It notes that
has appealed to the circuit court twice and is now seeking a third bite of the apple which is
permissible and is an unlawful transfer of authority to an arbitrator. The County contends
and conclusive" is meant to be final and conclusive and even appellate courts have no
review the circuit court's decision and certainly there is no statutory authority to transfer
review to an arbitrator. The County believes that the Commission lacks the authority to
order to the
County to proceed to arbitration over the discharge of Edwards and it requests that the
The Union contends that the County's two arguments do not provide a sufficient basis
denying Edwards' right to arbitration. It asserts that the County disingenuously denies it
arbitrate Edwards' grievance despite clear evidence of its agreement. The Union states that
County relies on decisions under the wrong statutory provisions to show an irreconcilable
between the agreement and Sec. 59.21(8)(b), Stats. The Union argues that the Supreme
decision in Brown County Sheriff's Department v. Employees Association, 194 Wis.2d 265,
533 N.W. 2d 766 (1995) requires enforcement of the parties' agreement to arbitrate. It
the City of Janesville, supra, as well as City of DePere, supra, are inapplicable because
County, supra, was decided later and arbitration clauses are enforceable which is different
whether arbitration clauses are mandatory subjects of bargaining. It also points out that
supra, interprets Sec. 62.13, Stats., as opposed to Sec. 59.21, Stats. The Union also submits
equity mandates arbitration as Edwards' discharge was based on a conviction that no longer
The Union insists that the County agreed to arbitrate Edwards' grievance in its June
letter. It maintains that the testimony that this was not the intent of the County was
In conclusion, the Union takes the position that the County failed to show an inherent
between the parties' agreement and Sec. 59.21 (8)(b), Stats., justifying its refusal to
submits that the County should be made to honor its agreement to arbitrate and make the
whole for its unlawful refusal to arbitrate.
The County contends that a review of the Union's arguments reveals that it has
ignore recent case law and express statutory provisions which the County believes prohibit
arbitration for disciplinary decisions involving law enforcement officers. The County point
Edwards appealed his discharge to Circuit Court which distinguishes his case from those of
The County agrees that, in general, Wisconsin labor relations policy favors
resolve labor disputes but there is an exception and that is if the court sustains the
it shall be final and conclusive. The County believes that after Janesville, supra, Sec.
Stats., controls and is the sole appeal of discipline and arbitration is not available because it
be an unlawful transfer of authority to an arbitrator. The County maintains that the Union's
on Brown County, supra, is misplaced, as it had nothing to do with the transfer of authority
the circuit court to an arbitrator. It submits that the issue was whether the sheriff's powers
subject to or limited by a collective bargaining agreement.
The County observes that the issue of whether a deputy sheriff's sole remedy of
review by the circuit court has not yet been addressed by the Supreme Court and it cites
Labor Association of Wisconsin, Inc. 214 Wis.2d 1 (1997) where a County was estopped
challenging an arbitrator's award on a sheriff's deputy's dismissal where no challenge was
arbitration until after the arbitrator issued his award. It notes that it has objected to the
of Edwards' discharge and it is Edwards who is seeking "two bites of the apple" by seeking
As to the Union's request for attorneys' fees, the County contends that the Union has
to meet the Commission's standard for awarding attorneys' fees. It requests dismissal of the
Complaint in its entirety.
The County has argued that the only appeal available to Edwards is to the circuit
pursuant to Sec. 59.26(8)(b)6, Stats. The County has acknowledged that the Wisconsin
Court has not determined whether a deputy sheriff's sole and exclusive appeal of the
Committee's decision is to the circuit court. Milas v. Labor Association of
Wisconsin, 214 Wis.2d 1 (1997). The undersigned also finds that it is unnecessary to
determination. The parties' collective bargaining agreement contains a grievance procedure
culminates in final and binding arbitration. Article 6 of this agreement provides that no
action shall be taken against employes except for just cause. Thus, it would appear that the
arbitration clause covers the issue of whether there was just cause for Edwards' termination.
Commission in Dodge County, Dec. No. 21574 (WERC, 4/84) held that an employe under
language has the right to appeal through the grievance procedure under the just cause
However, the Commission went on to state that the grievance procedure is an available
which to challenge a Grievance Committee disciplinary action only so long as the employe
filed a Sec. 59.21(8)(b)6., Stats., appeal to circuit court. The rationale for this is that Sec.
59.21(8)(b)6, Stats., provides that if the circuit court upholds the decision, it is "final and
An agreement to arbitrate cannot be interpreted to challenge the same disciplinary action
in the circuit court because to do so would contradict the statutory provision that the
upheld by the circuit court, is "final and conclusive."
In the instant case, Edwards appealed to circuit court which upheld the County's
Committee's decision to discharge Edwards and that decision by statute became final and
so the grievance procedure's arbitration provision cannot be invoked because it would
contradict the statutory provision. Thus, arbitration is not available to Edwards. All the
of past practice and other cases cited by the Union are not on point because none involved a
where the discharged or disciplined employe went to circuit court and after receiving an
decision, then attempted to proceed to arbitration on the same discipline. In DePere, supra,
officer attempted to appeal a disciplinary action previously appealed to circuit court and the
Commission held that the City's refusal to proceed to arbitration did not constitute a
The Union has argued that the County's June 19, 1996 letter constitutes a separate
to arbitrate the Edwards discharge. It is noted that the letter refers to the words, "at his
meaning that it was Edwards' choice to appeal to arbitration and that parallels the
in Dodge County, supra, where the Commission stated that it is "at the employe's option," to
proceed to arbitration as long as there is no appeal to circuit court. Edwards had appealed to
court and the record is not clear whether the author of the letter knew this or not but
have dropped his court appeal and proceeded to arbitration, so it would appear that this was
separate agreement by the County to arbitrate his discharge. But even if it were, it entails
exclusion as the regular contractual agreement to arbitrate. No arbitration agreement can
the statute and the circuit court's order that the Committee's decision is final and conclusive
precludes any agreement to arbitrate whether in the contract or by the letter of June 19,
Finally, the instant case is the reverse side of Milas, supra. In Milas, the parties
arbitration over the dismissal of a sheriff's deputy and after the arbitrator's award, the
to set aside the arbitration award, claiming the statutory appeal to circuit court was exclusive.
Court concluded that the doctrine of equitable estoppel applied and ordered the arbitrator's
reinstated. Here, Edwards went through the statutory appeal
process in Sec. 59.26(8)(b)6, Stats., and now seeks arbitration because he is not
satisfied with the
circuit court's decision. Here too, Edwards is estopped. To paraphrase the Court,
Edwards to question the circuit court's decision after he chose that venue and participated in
proceeding would give Edwards "two bites at the apple," arbitration and litigation, to obtain
favorable outcome. Edwards elected, at his option, to appeal to circuit court and having
done so, he
is estopped from seeking arbitration, and is bound by the court's order that the Committee's
is final and conclusive. Therefore, there is no violation of Secs. 111.70(3)(a) 1, 3, 4 or 5,
the complaint has been dismissed in its entirety.
Dated at Madison, Wisconsin, this 31st day of August, 1998.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Lionel L. Crowley, Examiner